MDC Legal’s Nikita Barsby, Senior Associate, and Renae Harg, Associate, discuss whether employees can secretly record conversations in the workplace, with reference to Western Australian and Commonwealth laws, and case law.
1. With a majority of Australian employees now owning a smart phone with some sort of recording device, instances of employees secretly recording performance management or other conversations in the workplace are increasing.
2. It is unlawful to secretly record private conversations under the Surveillance Devices Act 1998 (WA). It is also unlawful to record telephone conversations under the Telecommunications (Interception and Access) Act 1979 (Cth).
3. However, exceptions to the Surveillance Devices Act 1998 (WA) include where:
a. each principal participant to the private conversation consents to the recording, whether that consent is express or implied; and
b. a principal participant to the private conversation consents to the recording and the recording is reasonably necessary for the protection of the lawful interest of one of the principal participants.
4. A recording made where a serious dispute has arisen, and where there may be a dispute as to different versions of a conversation, may give rise to a lawful interest requiring protection.[i] However, a principal participant to the conversation must still consent to the recording.
5. Secretly recording conversations in the workplace is conduct that has been held to justify dismissal.
6. In Thompson v John Holland Group Pty Ltd  FWA 10363 the Commission found that an employee’s conduct in secretly recording a conversation with his employer was not only unlawful, but “seriously wrong and inexcusable” leading to a destruction of the relationship of trust and confidence between the parties. The Commission held that this conduct constituted a valid reason for dismissal.
7. In the recent case of Tawanda Gadzikwa v Australian Government Department of Human Services  FWC 4878, DP Colman commented that, unless there is justification, the secret recording of conversations in the workplace was highly inappropriate, potentially corrosive of a healthy and productive workplace environment and is to be deprecated.
8. However, despite the unlawfulness of this conduct, and the dim view taken of it by Courts and Commissions, secretly recorded conversations can be admissible evidence in employment related disputes where they have probative value.
9. For example, in Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3)  FCCA 694, Lucev J said, in respect of a secret recording:
…for the purposes of s.138(1) of the Evidence Act 1995 (Cth), even if the recording had been obtained improperly, in consequence of an impropriety, or in contravention of Australian law, the desirability of the recording being admitted outweighed the undesirability of it not being admitted.
10. Matters that the Court may have regard to in coming to a decision on the admissibility of improperly obtained evidence include (without limitation):
(a) the probative value of the evidence;
(b) the importance of the evidence in the proceeding;
(c) the nature of the subject matter of the proceeding;
(d) the gravity of the impropriety or contravention in obtaining the evidence and whether it was deliberate or reckless;
(e) the difficulty of obtaining the evidence without impropriety or contravention of an Australian law.
11. Despite the above, in the writers’ view, secretly recording conversations in a workplace context not only may expose the employee making the recording to disciplinary action (and potential dismissal) but further, in so far as the recording is relied on in future legal proceedings it may be damaging to the credibility of the employee.
12. Employers should consider including clauses in employment contracts and policies prohibiting secret recordings, and confirming that such conduct may result in disciplinary action up to and including dismissal.
13. Employers should also consider how they conduct disciplinary and termination meetings in the event the issue of recording conversations arises. If the employee asks to record a conversation and the employer does not wish for it to be recorded, the employer should state clearly and unequivocally that they do not consent to the recording of the meeting.
14. As always, employers should take detailed written notes of any disciplinary and termination meetings, as well as ensure they always comply with any company policies and procedures.
Nikita Barsby (BA LLB, Murdoch University) is a Senior Associate at MDC Legal, with almost a decade’s experience in workplace and employment law. She is recognised as a recommended employment lawyer in Doyle’s Guide to the Legal Profession, 2018. Nikita has worked with Corrs Chambers Westgarth and Lynn & Brown Lawyers, prior to joining MDC Legal. Nikita has advocacy and negotiation experience in the Federal Court of Australia, the Federal Circuit Court of Australia, the Magistrates, District and Supreme Courts of Western Australia, in the Fair Work Commission and in the Western Australian Industrial Relations Commission. She advises employees and employers on all aspects of State and Federal workplace laws. Nikita also works with Human Resources practitioners and business owners in the development of workplace relations strategies, policies and procedures. Contact Nikita at [email protected]
Renae Harg (BA LLB, University of Western Australia) is an Associate at MDC Legal. Renae has practiced in employment law since 2013. Prior to commencing with MDC Legal, Renae worked at a global law firm and boutique WA employment law firm. Renae has a broad range of experience in providing employment and workplace relations advice and has acted for individuals as well as small, medium and global employers. Renae provides advice and assistance in all employment law matters, including termination of employment, unfair dismissals, adverse action, discrimination, drafting of employment contracts and policies, enterprise bargaining, post-employment restraints and workplace investigations. Contact Renae at [email protected]